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EXHIBIT 10.18
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("AGREEMENT")is made as of
,
,
by and between Amicus Therapeutics, Inc., a Delaware corporation
(the
"COMPANY"), and
("INDEMNITEE").
R E C I T A L S
WHEREAS,
the Company and Indemnitee recognize the increasing difficulty
in
obtaining directors' and officers' liability insurance, the
significant
increases in the cost of such insurance and the general reductions
in the
coverage of such insurance;
WHEREAS,
the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers
and directors
to expensive litigation risks at the same time as the availability
and coverage
of liability insurance has been severely limited; and
WHEREAS,
the Company desires to attract and retain the services of
highly
qualified individuals, such as Indemnitee, to serve as officers and
directors of
the Company and to indemnify its officers and directors so as to
provide them
with the maximum protection permitted by law.
NOW,
THEREFORE, in consideration for Indemnitee's services as an
officer
or director of the Company, the Company and Indemnitee hereby agree
as follows:
1.
Indemnification.
(a) Third
Party Proceedings. The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to
any
threatened, pending or completed action, suit, proceeding or any
alternative
dispute resolution mechanism, whether civil, criminal,
administrative or
investigative (other than an action by or in the right of the
Company) by reason
of the fact that Indemnitee is or was a director, officer, employee
or agent of
the Company, or any subsidiary of the Company, or by reason of the
fact that
Indemnitee is or was serving at the request of the Company as a
director,
officer, employee or agent of another corporation, partnership,
joint venture,
trust or other enterprise, against expenses (including attorneys'
fees),
judgments, fines and amounts paid in settlement (if such settlement
is approved
in advance by the Company, which approval shall not be unreasonably
withheld)
actually and reasonably incurred by Indemnitee in connection with
such action,
suit or proceeding if Indemnitee acted in good faith and in a
manner which
Indemnitee reasonably believed to be in or not opposed to the best
interests of
the Company, and, with respect to any criminal action or
proceeding, had no
reasonable cause to believe Indemnitee's conduct was unlawful. The
termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which
Indemnitee reasonably believed to be in or not opposed to the best
interests of
the Company, and, with respect to any
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criminal action or proceeding, had reasonable cause to believe that
Indemnitee's
conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company
shall
indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made
a party to any threatened, pending or completed action or suit by
or in the
right of the Company or any subsidiary of the Company to procure a
judgment in
its favor by reason of the fact that Indemnitee is or was a
director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason
of the fact that Indemnitee is or was serving at the request of the
Company as a
director, officer, employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees)
and, to the fullest extent permitted by law, amounts paid in
settlement actually
and reasonably incurred by Indemnitee in connection with the
defense or
settlement of such action or suit if Indemnitee acted in good faith
and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best
interests of the Company, except that no indemnification shall be
made in
respect of any claim, issue or matter as to which Indemnitee shall
have been
adjudged to be liable to the Company unless and only to the extent
that the
Court of Chancery of the State of Delaware or the court in which
such action or
suit was brought shall determine upon application that, despite the
adjudication
of liability but in view of all the circumstances of the Case,
Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which
the Court of
Chancery of the State of Delaware or such other court shall deem
proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
has
been successful on the merits or otherwise in defense of any
action, suit or
proceeding referred to in Subsections (a) and (b) of this Section
1, or in
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by
Indemnitee in connection therewith.
2. Contribution in the Event of Joint Liability.
(a) Subject to the indemnification provided in Section 1 with
respect to any threatened, pending or completed action, suit or
proceeding in
which the Company is jointly liable with Indemnitee (or would be if
joined in
such action, suit or proceeding), the Company shall pay, in the
first instance,
the entire amount of any judgment or settlement of such action,
suit or
proceeding without requiring Indemnitee to contribute to such
payment and the
Company hereby waives and relinquishes any right of contribution it
may have
against Indemnitee. The Company shall not enter into any settlement
of any
action, suit or proceeding in which the Company is jointly liable
with
Indemnitee (or would be if joined in such action, suit or
proceeding) unless
such settlement provides for a full and final release of all claims
asserted
against Indemnitee.
(b) Without diminishing or impairing the obligations of the
Company
set forth in the preceding subparagraph, if, for any reason,
Indemnitee shall
elect or be required to pay all or any portion of any judgment or
settlement in
any threatened, pending or completed action, suit or proceeding in
which the
Company is jointly liable with Indemnitee (or would be if joined in
such action,
suit or proceeding), the Company shall contribute to the amount of
expenses
(including
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attorneys' fees), judgments, fines and amounts paid in settlement
actually and
reasonably incurred and paid or payable by Indemnitee in proportion
to the
relative benefits received by the Company and all officers,
directors or
employees of the Company other than Indemnitee who are jointly
liable with
Indemnitee (or would be if joined in such action, suit or
proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction
from which
such action, suit or proceeding arose; provided, however, that the
proportion
determined on the basis of relative benefit may, to the extent
necessary to
conform to law, be further adjusted by reference to the relative
fault of the
Company and all officers, directors or employees of the Company
other than
Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand,
in connection with the events that resulted in such expenses,
judgments, fines
or settlement amounts, as well as any other equitable
considerations which the
law may require to be considered. The relative fault of the Company
and all
officers, directors or employees of the Company other than
Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such
action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand,
shall be
determined by reference to, among other things, the degree to which
their
actions were motivated by intent to gain personal profit or
advantage, the
degree to which their liability is primary or secondary, and the
degree to which
their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold
Indemnitee
harmless from any claims of contribution which may be brought by
officers,
directors or employees of the Company other than Indemnitee who may
be jointly
liable with Indemnitee.
3.
Agreement to Serve. In consideration of the protection afforded by
this
Agreement, if Indemnitee is a director of the Company he agrees to
serve at
least for the 90 days after the effective date of this Agreement as
a director
and not to resign voluntarily during such period without the
written consent of
a majority of the Board of Directors. If Indemnitee is an officer
of the company
not serving under an employment contract, he agrees to serve in
such capacity at
least for 90 days and not to resign voluntarily during such period
without the
written consent of a majority of the Board of Directors. Following
the
applicable period set forth above, Indemnitee agrees to continue to
serve in
such capacity at the will of the Company so long as he is duly
appointed or
elected and qualified in accordance with the applicable provisions
of the Bylaws
of the Company or any subsidiary of the Company or until such time
as he tenders
his resignation in writing. Nothing contained in this Agreement is
intended to
create in Indemnitee any right to continued employment.
4.
Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all
expenses
incurred by Indemnitee in connection with the investigation,
defense, settlement
or appeal of any civil or criminal action, suit or proceeding
referenced in
Section 1(a) or (b) hereof (but not amounts actually paid in
settlement of any
such action, suit or proceeding). Indemnitee hereby undertakes to
repay such
amounts advanced only if, and to the extent that, it shall
ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as
authorized hereby. The advances to
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be made hereunder shall be paid by the Company to Indemnitee within
ten (10)
business days following delivery of a written request therefor by
Indemnitee to
the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give
the Company notice in writing as soon as practicable of any claim
made against
Indemnitee for which indemnification will or could be sought under
this
Agreement. Notice to the Company shall be directed to the President
of the
Company at the address shown on the signature page of this
Agreement (or such
other address as the Company shall designate in writing to
Indemnitee). Notice
shall be deemed received three business days after the date
postmarked if sent
by domestic certified or registered mail, properly addressed, five
business
days if sent by airmail to a country outside of North America;
otherwise notice
shall be deemed received when such notice shall actually be
received by the
Company. In addition, Indemnitee shall give the Company such
information and
cooperation as it may reasonably require and as shall be within
Indemnitee's
power.
(c) Procedure. Any indemnification and advances provided for in
Section 1 and this Section 4 shall be made no later than ten (10)
business days
after receipt of the written request of Indemnitee. If a claim
under this
Agreement, under any statute, or under any provision of the
Company's
C
